No.  55, 


IN  SENATE, 

March  II,  1831. 


COMMUNICATION 

From  the  Governor,  relative  to  the  boundary  line 
between  this  State  and  the  State  of  New- Jersey. 

TO  THE  LEGISLATURE. 

Gentlemen, 

I  consider  it  my  duty  to  lay  before  you  the  accompanying  com- 
munication from  the  Attorney-General,  concerning  our  controversy 
with  New-Jersey.  The  matter  to  which  it  relates,  derives  much  of 
its  importance  from  the  grounds  assumed  by  the  Judges  of  the  Su- 
preme Court  of  the  United  States,  with  regard  to  their  powers  ;  and 
I  feel  bound  to  present  to  you  my  views  of  the  subject,  as  well  as 
the  course  which  I  feel  impelled  by  a  regard  to  the  interests  and 
honor  of  the  State  to  pursue,  unless  you  shall  think  proper  to  give 
it  a  different  direction. 

You  are  apprised  by  the  accompanying  papers,  and  those  which 
have  preceded  them,  from  the  same  source,  of  the  several  steps 
taken  by  the  State  of  New-Jersey,  to  compel  our  appearance  before 
the  national  judiciary,  to  contest  with  her  the  question  of  sovereignty 
over  a  portion  of  the  waters  of  the  Hudson  river. 

It  seems  to  be  a  mere  question  of  sovereignty  over  the  waters, 
inasmuch  as  New-Jersey  admits  in  her  bill  of  complaint,  that  what- 
ever right  she  may  have  had  to  the  islands,  those  rights  have  been 
lost  by  adverse  possession  and  the  lapse  of  time. 

The  Attorney-General,  with  my  sanction,  has  hitherto  declined 
to  appear  in  court  and  respond  to  the  complaint,  without  intending 
any  disrespect  to  that  high  tribunal,  and  in  a  manner  which  I  trust 

[S.  No.  55.]  1 


2  [Senate 

precludes  the  imputation  of  such  a  motive.  His  refusal  to  appear 
was  grounded  upon  the  belief,  that  the  court  has  not  been  invested 
with  the  power  to  take  cognizance  of  original  suits,  where  a  State 
is  made  a  defendant  party.  The  reasons  for  this  opinion  are  more 
fully  detailed  by  the  Attorney-General,  but  may  be  succinctly  stated 
as  follows  : 

1.  It  \va3  not  designed  by  the  Constitution  to  confer  that  power 
on  the  court,  until  Congress  had  legislated  upon  it,  and  declared 
what  controversies  between  States  were  proper  to  be  entertained 
by  the  court,  and  what  should  be  the  mode  of  proceeding.  The 
Constitution  is  silent  in  regard  to  both  of  these  matters.  A  strong 
argument  in  favor  of  this  construction  is  afforded  by  that  clause  in 
the  Constitution,  which,  after  enumerating  the  powers  of  Congress, 
adds  :  "To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  povjera 
vested  by  the  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof 

2.  That  Congress  had  passed  no  laws  for  these  purposes. 

In  H89,  a  judiciary  act  was  passed,  giving  writs  andother  pro- 
ceedings in  all  cases,  other  than  those  where  a  state  was  defend- 
ant. This  was  a  practical  construction  of  the  constitution,  and 
showed  their  opinion  that  legislation  was  necessary  to  enable  the 
court  to  proceed.  And  by  neglecting  to  provide  specifically,  for 
proceedings  in  controversies  between  states,  they  indicated  their 
opinion  that  the  time  had  not  arrived  when  it  wouid  be  proper  for 
the  court  to  entertain  such  suits.  The  meaning  of  Congress  is  most 
distinctly  marked  by  the  wording  of  the  judiciary  act.  It  grants  to 
the  court,  the  power  to  issue  certain  writs,  and  further,  "  all  other 
writs  not  specially  provided  for  by  statute,  which  may  be  necessa- 
ry for  the  exercise  of  their  respective  jurisdictions,  and  agreeable 
to  the  principles  and  usages  of  law." 

Now,  as  no  mode  of  proceeding,  against  a  sovereign  state,  is 
known  to  the  common  law,  it  would  seem  to  be  a  fair  conclusion, 
that  Congress  designed,  by  precise  and  unequivocal  language,  to 
exclude  an  implication,  that  the  power  to  proceed  against  a  state 
was  granted  by  the  act, 

3.  Although  the  court  has  frequently  attempted  to  exercise  this 
power,  by  entertaining  writs  against  states,  and  summoning  them  to 


No.  55.]  S 

appear  and  answer,  no  state  has  ever  obeyed  their  summons  ;  there- 
by virtually  denying  the  power  of  the  courf. 

4.  Several  attempts  have  been  made  by  states  to  prevail  upon 
Congress,  to  pass  laws  for  this  object  ;  but  they  have  uniformly  re- 

•>  fused  to  vest  this  power  in  the  court.    Two  of  these  attempts, 

made  in  1822  and  1828,  are  detailed  in  the  several  reports  of  the 
Attorney-General. 

5.  The  state  of  New-Jersey  has,  impliedly,  admitted  the  want  of 
power  in  the  court,  by  her  attempt  to  obtain  the  passage  of  the  law 
in  1822,  and  by  a  proposition  made  through  her  commissioners,  to 
the  commissioners  on  the  part  of  this  State,  in  1S27,  to  submit  this 
controversy  to  the  Supreme  Court,  as  an  impartial  tribunal  to  ar- 
bitrate between  the  parties. 

Taking  the  foregoing  view7  of  the  subject,  I  did  not  consider  my. 
self  justified  in  permitting  the  State  to  be  represented  as  a  party 
defendant,  before  a  tribunal  which  had  no  right  to  exercise  authori- 
ty over  us,  and  which,  I  confidently  hoped,  would,  on  a  review  of 
its  own  powers,  come  to  that  conclusion. 

But  the  matter  has  now  assumed  a  new7  aspect.  The  opinion  of 
that  court  shews,  that  they  view7  the  subject  differently,  or  at  least 
aie  disposed  to  assume  the  jurisdiction  on  an  ex  parte  case. 

The  grounds  upon  which,  it  is  supposed,  that  the  court  claims 
cognizance  of  the  controversy,  are  : 

1.  That  ample  power  is  given  to  them  by  that  clause  of  the  consti- 
tution, which  ordains  that  "  The  judicial  power  shall  extend  to  con- 
troversies between  two  or  more  states."  That  having  the  pow7er, 
the  means  of  exercising  it  are  incidental,  and  that  they  may,  by 
rules  of  court,  prescribe  the  forms  of  proceeding. 

2.  That  the  proceedings  in  suits  before  that  court,  prescribed  by 
statute,  are  applicable  to  cases  where  a  state  is  defendant,  and  that 
therefore  Congress  has  legislated  on  the  subject  ;  and, 

3.  That  the  decisions  of  that  court  have  been  uniform,  in  all  ca- 
ses w7hich  have  come  before  it,  and  support  the  authority  of  the 
court. 

We  have  now  reached  a  point  in  the  progress  of  this  litigation, 
where  the  future  action  of  the  State  should  be  determined  upon 


4  [Senate 

with  deliberation,  and  governed  by  a  due  sense  of  all  the  high  re- 
sponsibilities resting  upon  us,  as  citizens  of  the  United  States,  and 
members  of  a  corporate  state  sovereignty.  This  State  can  never 
forget  that  she  is  a  member  of  the  Union,  and  has  a  large  stake  in 
its  perpetuity.  While  she  will  permit  no  encroachments  on  the 
part  of  the  general  government,  she  will  put  forth  her  strong  arm,  in 
time  of  need,  to  support  it  in  the  exercise  of  its  acknowledged  pow- 
ers. If,  on  this  occasion,  she  is  compelled  to  differ  with  the  nation- 
al judiciary,  I  have  no  doubt,  that  she  will  do  so  firmly  and  dispas- 
sionately, and  afford  a  becoming  example  of  respect  towards  the 
tribunal  deemed  worthy,  by  the  founders  of  our  government,  to  be 
the  depository  of  the  power  for  preserving  the  peace  of  the  Union. 

It  was  undoubtedly  a  part  of  the  design  of  our  government  to  have 
a  judicial  tribunal  to  decide  on  all  questions  of  conflicting  rights, 
growing  out  of  the  limitations  of  the  sovereignty  of  the  States,  and 
the  specific  delegations  of  power  to  the  general  government.  And 
one  of  its  special  objects  was  to  adjust  amicably,  all  such  differences 
as  might  arise  between  the  States.  The  want  of  such  a  power,  with 
sufficient  energy  tG  enforce  its  decisions,  was  one  of  the  leading 
motives  for  proposing  a  Constitution. 

Every  worthy  American  must  be  penetrated  with  feelings  of  gra- 
titude, when  he  contemplates  the  beautiful  structure  of  our  govern- 
ment, and  the  w7onderful  harmony  and  adaptation  of  its  parts.  The 
people,  although  divided  into  several  communities,  are  nevertheless, 
by  their  compact,  bound  together  in  fraternal  relations,  under  a 
common  head,  with  all  the  same  social  interests,  duties  and  feelings, 
which  belong  to  a  consolidated  nation.  In  its  great  outlines,  human 
wisdom  could  not  devise  any  thing  more  perfect,  to  secure  those 
who  live  under  its  protection,  in  the  possession  of  their  rights,  and 
to  defend  them  from  the  calamities  attendant  upon  civil  dissentions. 
It  wTould  have  been  essentially  defective  in  its  arrangements,  if  pro- 
vision for  the  adjustment  of  disputes  between  the  members  of  the 
confederacy  had  been  omitted.  An  appeal  to  arms,  which  is  the 
only  means  of  redress  by  one  nation  for  the  wrongs  committed  upon 
it  by  another,  is  ill  suited  to  the  condition  of  the  members  of  the 
same  political  family. 

But  in  this  part  of  the  system,  an  inherent  difficulty  reminds  us 
of  the  imperfection  of  all  human  works.  Our  government  is  based 
upon  a  written  Constitution,  which  is  the  rule  of  conduct  for  all  the 


No.  55.  J  5 

constituted  authorities.  Legislative  discretion  finds  its  limits-there. 
Who  shall  decide  when  its  boundaries  are  transgressed  ?  If  this 
power  had  been  placed  in  Congress,  then  not  the  Constitution,  but 
the  will  of  that  body,  would  be  the  fundamental  law  of  the  empire. 
It  is  in  the  nature  of  things,  that  there  must  be  an  irresponsible 
power,  somewhere,  and  in  the  adjustment  of  the  parts  of  our  gov- 
ernment, it  was  deemed  essential  to  the  uniformity  of  its  action,  to 
place  it  beyond  the  influence  of  (hose  commotions,  arising  from 
popular  errors,  which  indiscriminately  destroy,  and  soon  pass  away. 
This  power  was,  therefore,  intended  to  be  placed  injudicial  officers, 
rendered  immoveable,  save  for  misconduct. 

This  body,  being  the  ultimate  tribunal  from  which  no  appeal  lies, 
must  necessarily  decide,  among  other  things,  upon  its  own  constitu- 
tional powers.  The  only  relief  from  its  errors  rests  in  a  resort  to 
amendments  of  the  Constitution,  to  an  impeachment  of  the  judges, 
and  in  cases  of  flagrant  usurpations,  to  a  refusal  by  the  officers  to 
execute  its  decrees,  or  a  forcible  resistance  on  the  part  of  the  State, 
which  is  sought  to  be  subjected  to  its  power. 

While  we  deny  to  the  Supreme  Court  the  right  to  bring  us  before 
its  judgment  seat,  we  have  no  reason  to  believe  that  it  designs  to 
usurp  authority  over  us,  or  that  it  will  persist  in  enforcing  a  jurisdic- 
tion, when  it  is  convinced  of  its  error.  Indeed  the  court  seem  to 
invite  us  to  a  discussion  of  their  power,  in  the  closing  part  of  their 
opinion,  where  they  say,  that  "  the  question  of  proceeding  to  a  final 
decree  will  be  considered  as  not  conclusively  settled,  until  the 
cause  shall  come  on  to  be  heard  in  chief." 

However  clear  we  may  consider  the  question  to  be,  that  the  court 
has  no  power,  yet  the  only  peaceful  tribunal  which  has  cognizance 
of  the  question  has  decided  it  provisionally  against  us,  and  it  becomes 
a  question  of  magnitude,  whether  we  shall  now  assume  an  attitude 
of  resistance,  or  whether  we  shall  embrace  the  opportunity  still 
presented  to  us,  to  debate  the  question. 

It  will  be  proper  to  inquire,  in  the  first  place,  if  any,  and  what 
rights  of  the  State  will  be  compromised  by  an  appearance  in  court, 
to  contest  the  jurisdiction,  and  ultimately  to  try  the  merits  of  the 
dispute  between  the  States.  A  resort  to  forcible  resistance  would 
be  both  unwise  ad  unbecoming  in  the  State,  except  on  undisputed 
ground,  and  at  the  last  point  of  forbearance. 


"  [Senate 

It  has  been  feared  by  some,  that  if  we  should  appear  in  court,  we 
should  thereby  waive  our  right  to  object  to  the  jurisdiction  in  the 
subsequent  progress  of  the  cause.    If  a  law  of  Congress  be  neces- 
sary to  give  effect  to  the  Constitution,  and  the  court  takes  no  juris- 
diction without  it,  then  an  appearance  by  the  State  waives  nothing. 
Jurisdiction  cannot  be  conferred  by  an  act  which  does  not  extend  it 
over  all  the  States.    The  Constitution  or  the  law,  or  both  conjoint- 
ly, may  confer  such  a  jurisdiction,  but  no  State  can  bestow  it  either 
by  implication  or  express  consent.    It  is  a  rule  of  law,  that  the  con- 
sent of  a  party  does  not  give  jurisdiction  :  a  court  takes  no  more 
power  by  virtue  of  it,  than  an  unofficial  person.    The  authority  of 
a  tribunal,  created  by  the  consent  of  the  parties,  is  derived  from  the 
submission,  and  cannot  be  extended  beyond  its  terms.  Contending 
as  we  do,  that  the  clause  of  the  Constitution  which  declares,  that  the 
judicial  power  shall  extend  to  controversies  between  States,  is  a 
dormant  power,  and  does  not  attach  to  any  tribunal  until  it  is  vivified 
by  an  act  of  Congress,  our  appearance,  in  compliance  with  a  sum- 
mons from  the  court,  under  a  protest  against  its  proceedings,  will 
admit  nothing. 

But  supposing  that  this  position  is  untenable,  and  that  the  Consti- 
tution should  be  interpreted  to  mean  to  invest  the  court  with  a  ju- 
risdiction, which  it  is  unable  to  execute,  for  want  of  process  to  bring 
the  party  into  court;  yet  we  have  a  right  to  contend,  and  I  think 
we  will  be  sustained  by  the  court,  and  the  enlightened  sense  of  the 
American  people,  that  the  technical  rules  of  law,  so  proper  and  ex- 
pedient in  ordinary  causes  between  private  parties,  ought  not  to 
apply  to  a  case  so  peculiar  and  momentous.    This  case  is  entirely 
anomolous,  involving  a  great  and  fundamental  question  of  right.  It 
is  to  determine  the  limits  of  power  between  a  State  sovereignty  and 
an  arm  of  the  national  government,  beyond  which  there  is  no  appeal, 
except  to  that  which  severs  the  bonds  of  the  Union,  and  involves  us 
in  all  the  horrors  of  civil  war.    Such  rights  as  we  contend  for  are  not 
to  be  controlled  by  technicalities,  and  cannot  be  waived  by  any 
implication.    We  have  too  much  regard  to  the  public  peace  ;  too 
much  respect  for  the  constituted  authorities ;  too  much  interest  in 
sustaining  the  National  as  well  as  State  governments  in  their  proper 
spheres,  to  put  at  defiance  any  branch  of  authority  created  by  the 
Constitution,  until  argument  and  remonstrance  are  exhausted. 

We  have  great  confidence,  that  should  the  merits  of  the  contro- 
versy between  this  State  and  New-Jersey  be  examined,  they  will 


No.  35.]  7 

be  found  to  rest  with  us.  If  this  should  be  the  result  of  an  investi- 
gation before  the  court,  it  would  quiet  this  hitherto  vexatious  dis- 
pute, which  has  so  long  disturbed  our  harmony  with  a  sister  State. 
If,  however,  a  judgment  should  pass  contrary  to  our  expectations, 
and  justice  should  not  demand  of  us  to  cede  the  disputed  territory, 
and  we  should  still  deny  the  authority  of  the  tribunal,  we  should 
then  be  in  as  good  a  condition  to  resist  the  execution  of  the  judg- 
ment, as  if  it  had  passed  against  us  by  default  of  appearance. 

As  the  court  has  seen  fit  to  select  the  Executive  and  Attorney- 
General,  as  the  proper  persons  to  bring  into  their  court,  as  the  rep- 
resentatives of  the  State,  I  shall,  unless  otherwise  directed  by  the 
Legislature,  instruct  the  Attorney-General  to  protest  against  any 
waiver  of  right  by  appearing,  and  to  appear  and  contest  the  suit  in 
its  progress,  to  its  final  determination. 

E.  T.  THROOP. 

Albany,  March  10,  1831. 


# 


r 

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http://archive.org/details/communicationfro00newy_4  1 


REPORT  OP  THE  ATTORNEY-GENERAL. 


Albany ,  February  24,  183  L 

His  Excellency  Eno9  T.  Throop, 

Governor  of  the  State  of  New-  York. 

SIR— 

It  has  become  my  duty  again  to  invite  the  attention  of  your  Ex- 
cellency, to  the  suit  commenced  in  the  Supreme  Court  of  the  Unit* 
ed  States,  by  the  State  of  New-Jersey,  against  the  People  of  the 
State  of  New- York.  And  in  doing  so,  it  may  be  proper  to  give  a 
brief  account  of  the  nature  and  progress  of  this  litigation. 

In  June,  1829,  a  copy  of  the  bill  filed  by  the  State  of  New-Jersey, 
and  a  subpoena  to  appear  and  answer,  were  served  upon  the  Gover- 
nor and  Attorney-General.  The  subpoena  was  directed  to  those 
officers,  and  commanded  them  to  appear  "  on  behalf  of  the  people 
of  the  State  of  New-York,"  which  they  were  not  to  omit  u  under 
the  penalty  of  five  hundred  dollars." 

The  bill  filed  by  the  State  of  New-Jef sey,  after  setting  forth  let* 
ters  patent  granted  by  king  Charles  the  second,  to  his  brother 
James,  duke  of  York,  in  1664,  and  several  other  grants,  proceeds  as 
follows  :  "  And  your  complainants  respectfully  insist,  that  by  the 
fair  construction  of  the  grants  before  mentioned,  and  by  the  princi- 
ples of  public  law,  the  State  of  New-Jersey  is  justly  and  lawfully 
entitled  to  the  exclusive  jurisdiction  and  property  of  and  over  the 
waters  of  the  Hudson  river,  from  the  forty-first  degree  of  latitude, 
to  the  bay  of  New-York,  to  the  filvm  aqua,  or  midway  of  the  said 
river  ;  and  to  the  midway  or  channel  of  the  said  bay  of  New* 
York,  and  the  whole  of  Staten-Island  Sound,  together  with  the 
land  covered  by  the  water  of  the  said  river,  bay,  and  sound,  in  the 
like  extent. 

"  And  your  complainants  well  hoped  that  the  people  of  the  State 
of  New-York,  w?ould  have  permitted  your  complainants  peaceably 
and  quietly  to  enjoy  her  said  rights  of  property,  jurisdiction  and  so- 
vereignty, over  the  said  waters,  and  land  covered  with  water,  of 
the  said  river  Hudson,  and  the  other  dividing  waters  of  the  Bay  of 
New-York,  without  the  interruption  and  disturbance  of  the  State  of 
New-York,  as  in  justice  and  equity  she  ought  to  have  done,  But 

[S.  No.  55.]  2 


10  [Senate 

now,  so  it  is j  may  it  please  your  honors,  that  the  people  of  the  State 
of  J^cw-York,  intending  to  encroach  upon  and  aggrieve  the  State  of 
New-Jersey  in  her  lawful  rights,  at  an  early  period  of  the  settle- 
ment of  the  said  States,  and  while  they  were  colonies,  wrongfully 
and  forcibly  possessed  herself  of  the  said  island,  called  Staten-Island, 
and  the  other  small  islands  in  the  dividing  waters  between  the  two 
States  ;  and  your  complainants  then  being  a  feeble  colony,  and  un- 
der a  proprietary  government,  although  the  right  of  New-Jersey 
was  publicly  and  frequently  urged  to  the  said  islands,  she  could 
oppose  no  effectual  resistance  to  the  said  encroachment  of  the  State 
of  New-York,  which  was  then  under  royal  patronage,  and  her  inha- 
bitants exempted  from  the  taxation  which  New-Jersey  was  obliged 
to  impose  upon  her  citizens  ;  that  the  possession  thus  acquired  by 
New-York,  has  been  sirtce  that  time  acquiesced  in,  and  the  State  of 
New-York  refuses  to  yield  up  to  your  complainants  the  said  islands, 
insisting  that  by  the  principles  of  public  law,  the  said  possession  of 
the  said  islands,  has  established  the  title  to  the  same  in  herself  ; 
but  your  complainants  insist  and  charge,  that  although  it  may  be 
true,  that  the  long  continued  possession  of  New-York  of  the  said 
islands,  may  conclude  your  complainants  from  disturbing  the  same 
at  this  time,  and  which  your  complainants  are  willing,  for  the  sake 
of  peace,  to  admit;  yet  that  the  State  of  New-York  has  no  other 
pretence  of  title  to  the  said  islands,  on  which  she  can  rely,  but  the 
said  adverse  possession  ;  and  that  inasmuch  as  the  said  possession 
of  those  islands  by  the  State  of  New-York,  has  been  uniformly  con- 
fined in  its  exercise  to  the  fast  land  thereof,  your  complainants  in- 
sist, that  the  title  of  New-Jersey  to  the  whole  waters  of  the  Staten- 
Island  Sound,  remains  clear  and  absolute  in  your  complainants,  ac- 
cording to  the  terms  of  the  raid  herein  recited  grants."  The  prin- 
cipal prayer  of  the  bill  is,  that  "  the  eastern  boundary  line  between 
your  complainants  and  the  State  of  New-Ycrk,  may  by  the  order 
and  decree  of  this  honorable  court,  be  ascertained  and  established, 
and  that  the  rights  of  property,  jurisdiction  and  sovereignty  of  your 
complainants  to  the  filwm  aqua,  or  middle  of  said  Hudson  river,  from 
the  forty-first  degree  of  north  latitude  on  the  said  Hudson  river, 
through  the  whole  line  of  the  eastern  shore  of  the  State  of  New- 
Jersey,  as  far  as  the  said  river  washes  and  bounds  the  said  State  of 
New-Jersey,  down  to  the  Bay  of  New-York,  and  to  the  channel  or 
midway  of  the  said  bay ;  and  to  all  the  waters  and  the  land  they 
cover,  lying  between  the  New-Jersey  shore  and  Staten-Island,  and 
all  other  waters  washing  the  southern  shores  of  New-Jersey  within 
and  above  the  Narrows  ;  and  that  your  complainants  may  be  quieted 


No.  55.  J  11 

in  the  full  and  free  enjoyment  of  her  property,  jurisdiction  and  sove- 
reignty, in  the  waters  aforesaid,  and  that  the  right,  title,  jurisdiction 
and  sovereignty  of  New-Jersey  in  and  over  the  same,  as  part  of  her 
public  domains,  be  confirmed  and  established  by  the  decree  of  this 
honorable  court." 

There  may  be  some  difficulty  in  ascertaining  from  the  statements 
and  allegations  in  the  bill,  whether  the  Slate  of  New-Jersey  intends 
to  claim  any  thing  more  than  the  right  of  territorial  jurisdiction, 
separate  from  the  right  of  property  in  the  soil.  If  the  claim  be  of 
this  description,  it  will  be  difficult  to  find  a  precedent  for  its  adjust- 
ment, either  in  a  court  of  law  or  of  equity  jurisdiction.  And  if  a 
right  of  property  is  asserted,  it  would  seem  to  be  a  case  requiring  a 
trial  at  law  in  some  of  those  actions  which  have  been  devised  for  de- 
termining the  right  to  real  property.  In  the  one  case,  a  question  is 
presented  in  relation  to  the  jurisdiction  of  the  court  over  the  subject 
matter  in  litigation  ;  and  in  the  other,  a  question  going  only  to  the 
form  of  the  remedy. 

But  these  were  questions  of  less  immediate  importance  than  the 
one  presented  by  this  proceeding,  whether  the  Supreme  Court  of 
the  United  States  could  exercise  original  and  compulsory  jurisdiction 
over  a  State.  Having  at  an  early  day  expressed  to  your  Excellency 
and  the  Legislature,  an  opinion  that  the  court  could  not  take  cogni- 
zance of  the  suit,  I  deem  it  proper  on  this  occasion,  briefly  to  state 
some  of  the  grounds  upon  which  that  opinion  was  founded. 

The  Constitution  of  the  United  States,  (Art.  III.  sec.  2,)  declares 
among  other  things,  that  "  the  judicial  power — shall  extend  to  contro- 
versies between  two  or  more  States;  between  a  State  and  citizens 
of  another  State — and  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens  or  subjects."  The  11th  amendment  to  the 
constitution  declares,  that  "the judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States,  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State." 
Without  considering  whether  this  ought  to  be  regarded  as  a  con- 
struction, rather  than  as  an  amendment  to  the  Constitution,  and 
conceding  that  the  judicial  power  of  the  United  States  extends  to 
controversies  between  States,  it  still  remains  to  be  considered, 
whether  the  grant  of  jurisdiction  by  the  Constitution  included  also 
the  means  of  carrying  it  into  execution ;  or  whether  those  means 
were  to  be  provided  by  Congress. 


12  [Seat  ate 

The  Constitution  provides,  (Art.  III.  sec.  1,)  that  "  the  judicial 
power  of  the  United  States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish but  neither  the  number  of  Judges  of  which 
the  Supreme  Court  should  consist,  or  the  times  or  places  of  their  % 
meeting,  nor  the  amount  of  their  compensation,  was  settled.  These, 
with  many  other  essential  things,  were  left  for  the  determination  of 
Congress,  in  filling  up  the  great  outline  that  had  been  marked  out 
by  the  Constitution.  That  legislation  would  be  necessary  in  the 
organization  of  the  new  government,  and  its  several  departments, 
was  foreseen  and  provided  for  by  the  trainers  of  the  Constitution. 
That  instrument  declares,  (Art.  L  sec.  8,  sub.  17,)  that  "  Congress 
shall  have  power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  [he  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof."  In  this  pro- 
vision a  distinction  is  plainly  recognized  between  a  power  vested  by 
the  Constitution  in  any  department  of  the  government,  and  the 
necessary  means  of  carrying  that  power  into  execution. 

There  is,  therefore,  nothing  absurd  in  saying,  that  a  power  con- 
ferred by  the  Constitution  may  remain  dormant,  if  Congress,  for 
any  cause  shall  omit  to  pass  the  necessary  laws  for  bringing  it  into 
exercise.  Had  no  laws  been  passed,  providing  for  the  organization 
of  the  supreme  or  the  other  courts  of  the  United  States,  the  whole 
judicial  power  would  have  remained  a  dead  letter  in  the  Constitu- 
tion. If,  after  the  number  of  Judges  of  which  the  Supreme  Court 
should  consist  had  been  fixed  by  law,  and  the  offices  had  been  filled, 
no  times  or  places  had  been  assigned  by  law  for  their  meeting,  there 
would  have  been  Judges,  but  no  court.  And  if,  when  that  court 
was  duly  organized,  no  process  had  been  given  to  bring  before  it  the 
persons  to  be  affected  by  its  judgments  ;  or  if  process  had  been  given, 
without  the  proper  officers  to  execute  it,  the  court  would  still  have 
been  without  the  means  of  exercising  its  constitutional  authority. 

Such,  no  doubt,  were  the  views  entertained  by  the  members  of 
the  first  Congress  that  assembled  under  the  Constitution.  They 
proceeded  to  pass  the  necessary  laws  for  the  organization  of  the 
federal  courts,  and  to  provide  them  wTith  process,  and  officers  to  ex- 
ecute their  commands.  But  it  is  believed,  that  neither  the  first  nor 
any  subsequent  Congress  has  passed  any  such  laws  as  were  neces- 
sary for  carrying  into  execution  that  portion  of  the  judicial  power 
which  extends  to  controversies  between  two  or  more  States. 


No.  55.]  13 

It  is  a  fundamental  principle  in  our  laws,  admitting  of  but  few  and 
special  exceptions,  that  no  court  can  give  a  valid  judgment  until  it 
has  acquired  jurisdiction  over  the  person  of  the  defendant.  In  rela- 
tion to  all  those  suits  against  individuals  and  corporations,  of  which 
the  federal  courts  have  cognizance,  it  is  not  denied  that  they  have 
been  provided  with  the  means  of  acquiring  jurisdiction  over  theper: 
sons,  (whether  natural  or  artificial,)  to  be  affected  by  their  judg- 
ments. But  to  acquire  jurisdiction  over  a  State,  it  is  believed  that 
some  other  means  were  necessary  than  such  writs  as  are  u  agreeable  to 
the  principles  and  usages  of  law for  the  reason  that  there  was 
never  any  principle  or  usage  of  law  to  issue  writs  or  legal  process 
of  any  description  against  a  State  or  independent  government.  Nor 
is  it  supposed  that  giving  "  forms  and  modes  of  proceeding,"  in 
equity  cases,  "  according  to  the  principles,  rules  and  usages  which 
belong  to  courts  of  equity,"  can  reach  the  case  of  a  State  made  a 
defendant;  for  the  reason  that  there  were  no  pre-existing  forms  or 
modes  of  proceeding  against  a  State,  nor  wrere  there  any  principles, 
rules  or  usages  by  which  a  court  of  equity  could  acquire  jurisdiction 
over  an  independent  government. 

Without  going  into  any  particular  examination  of  the  acts  of  Con- 
gress relating  to  the  judicial  power  of  the  United  States,  it  may  be 
sufficient  in  this  place  to  say,  that  the  grant  of  original  jurisdiction 
over  a  State,  was  a  new  and  extraordinary  power :  And  if  the  fede- 
ral courts  could  not  exercise  their  ordinary  jurisdiction  over  individ- 
uals, without  the  authority  of  an  act  of  Congress  for  that  purpose,  it 
must  be  apparent,  that  this  case  called  for  special  legislative  provi- 
sions. A  law  giving  to  the  federal  courts  such  "  forms  of  writs  and 
executions,"  and  "  modes  of  process,"  in  the  several  States,  as  were 
then  u  used  and  allowed  in  the  Supreme  Courts  of  the  same,"  would 
sufficiently  provide  for  impleading  individuals,  but  would  make  no 
advances  towards  carrying  into  execution  the  power  to  implead  a 
State. 

In  the  case  of  corporations,  the  law  had  provided  the  appropriate 
process  for  compelling  their  appearance,  and  directed  the  mode  in 
which  service  was  to  be  made ;  but  against  a  State  or  sovereignty, 
no  process  for  compelling  an  appearance  had  ever  been  devised,  nor 
haJ  any  means  been  pointed  out,  by  which  the  defendant  could  be 
summoned  to  answer  the  complainant.  It  was,  therefore,  necessary 
in  providing  for  the  exercise  of  this  power,  either  that  some  new 


14  [Senate 

writ,  summons  or  process,  adapted  to  the  ease,  should  be  given  ;  or 
that  a  new  quality  or  efficacy  should  be  imparted  to  those  then  in 
use.  It  was  also  necessary  to  direct  in  what  manner  such  process 
should  be  served  ;  whether  upon  the  Governor,  or  some  other  officer, 
executive  or  judicial,  or  upon  the  Legislature  of  the  defendant  State  : 
whether  some  person  should  be  required  by  law  to  appear  for  the 
State,  or  under  what  circumstances  the  court  should  be  authorized 
to  proceed  ex  parte.  The  means  also  by  which  a  State  should  answer 
the  complaint,  whether  through  its  Legislature,  or  some  one  or  more 
of  its  executive  officers,  were  all  to  be  provided,  for  the  reason  that 
none  of  those  things  were  previously  known  to  the  laws,  or  to  any 
forms  of  judicial  proceedings.  These  are  only  a  sample  of  the  many 
provisions  that  seem  to  be  necessary  in  such  a  case.  Similar  diffi- 
culties must  exist  in  every  stage  of  the  proceeding,  and  instead  of 
diminishing,  they  will  be  found  to  multiply  and  increase  in  impor- 
tance, in  the  consideration  of  the  final  decree  or  judgment  to  be 
rendered,  and  the  proper  means  for  carrying  it  into  execution. 

Although  it  was  not  designed,  in  this  communication,  to  go  be- 
yond a  brief  statement  of  the  leading  reasons  for  the  opinion  that 
has  been  expressed,  it  may  be  proper  to  notice  several  cases  which 
came  before  the  court  between  the  years  1790  and  1800,  in  which 
the  court  entertained  jurisdiction  against  a  State.  The  case  of  Geor- 
gia against  Brailsford,  determines  nothing  upon  this  question,  for 
the  reason  that  the  State  was  the  complainant  in  the  bill,  and  so  a 
voluntary  party  to  the  suit.  And  in  relation  to  all  the  cases  that 
came  before  the  court,  it  is  not  unimportant  to  remark  that  no  one 
appeared  to  argue  against  tha  exercise  of  jurisdiction  ;  and  in  only 
two  of  the  cases  did  the  court  deliver  any  opinion  upon  that  ques- 
tion. Those  were  the  cases  of  Chisholm  against  the  State  of  Geor- 
gia, decided  in  February  term,  1793,  and  Grayson  against  the  State 
of  Virginia,  decided  in  August  term,  1796.  In  the  first  case,  the 
leading  question  discussed  by  the  judges  who  maintained  the  juris- 
diction of  the  court,  was,  whether  upon  the  true  construction  of  the 
constitution,  a  State  could  be  made  a  party  defendant,  and  not  whe- 
ther the  means  of  exercising  jurisdiction  had  been  provided  by  Con- 
gress. Mr.  Justice  Iredell  was  the  only  one  that  entered  distinctly 
into  the  latter  question,  and  he  arrived  at  the  following  conclusions  : 
"  1st.  That  the  constitution,  so  far  as  it  respects  the  judicial  authori- 
ty, can  only  be  carried  into  effect  by  acts  of  the  legislature  appoint- 
ing courts,  and  prescribing  their  methods  of  proceeding.  2d.  That 
Congress  has  provided  no  new  law  in  regard  to  this  case,  but  ex- 


No.  55.]  15 

pressly  referred  us  to  the  old.  3d.  That  there  are  no  [principles 
of  the  old  law,  to  which  we  must  have  recourse,  that  in  any  man- 
ner authorise  the  present  suit,  either  by  precedent  or  by  analogy. 
The  consequence  of  which,  in  my  opinion,  clearly  is,  that  the  suit 
in  question  cannot  be  maintained." 

In  the  case  of  Gray3on  against  Virginia,  after  the  service  of  a 
subpoena,  a  motion  was  made  for  a  distringas  to  compel  the  State  to 
enter  an  appearance  ;  but  the  court  postponed  a  decision,  "  in  con- 
sequence of  a  doubt  whether  the  remedy  to  compel  the  appearance 
of  a  State,  should  be  furnished  by  the  court  itself,  or  by  the  legisla- 
ture." Two  general  rules  were  finally  adopted,  the  first  of  which 
was  in  the  following  words  :  "  Ordered  that  when  process  at  com- 
mon law,  or  in  equity,  shall  issue  against  a  State,  the  same  shall  be 
served  upon  the  Governor,  or  chief  executive  magistrate,  and  the 
Attorney-General  of  such  State."  The  validity  of  this  rule  mani- 
festly depended  upon  the  power  of  the  court  to  provide  the  means 
for  impleading  a  State.  It  is  true,  that  the  federal  courts  were 
authorised  by  statute,  c:  to  make  and  establish  all  necessary  rules 
for  the  orderly  conducting  business  in  the  said  courts  ;"  but  it  is  be- 
lieved that  this  was  only  an  authority  to  regulate  proceedings  in 
cases  where  the  court  had  jurisdiction  by  law  ;  and  not  a  power  by 
which  jurisdiction  could  be  acquired.  The  like  remark  is  applica- 
ble to  another  provision,  by  which  the  courts  of  the  United  States 
were  authorised  to  make  alterations  and  additions  in  the  forms  of 
writs,  and  in  the  forms  and  mode  of  proceeding.  Congress  made 
direct  and  appropriate  provisions  for  carrying  into  execution  every 
portion  of  the  judicial  power,  except  that  which  related  to  the  im- 
pleading of  a  State.  And  to  place  the  jurisdiction  of  the  court  in 
this  case,  upon  its  power  to  make  rules  and  regulate  practice,  is  to 
suppose  that  Congress  intended  to  do  indirectly  what  it  was  not  pre- 
pared to  do  by  direct  and  specific  legislation.  And  besides,  if  the 
power  to  make  rules,  and  to  regulate  practice,  was  sufficient  to  ena- 
ble the  court  to  exercise  this  new  and  extraordinary  jurisdiction 
over  a  State,  it  was  most  clearly  sufficient  to  enable  the  federal 
courts  to  exercise  every  other  portion  of  their  jurisdiction  ;  and  all 
the  other  legislation  upon  this  subject  has  been  useless. 

But  whether  this  rule  was  originally  valid  or  not,  it  was  supposed 
to  be  obsolete,  for  the  reason  that  it  was  not  to  be  found  in  any  sub- 
sequent publication  of  the  rules  of  the  court.  This  was  one  of  two 
rules,  which  originally  appeared  together,  in  the  report  of  the  case 


16 


[Senate 


of  Grayson  against  Virginia  ;  one  of  which  has  been  regularly 
re-published  ever  since,  the  other  never,  until  within  the  past  year. 
Mr.  Peters,  in  his  Reports,  says,  that  this  omission  arose  from  the 
fact,  that  it  was  not  regularly  entered  by  the  clerk  at  the  time  of  its 
adoption. 

The  doctrine  that  the  Supreme  Court  of  the  United  States  cannot 
exercise  original  and  compulsory  jurisdiction  over  a  State,  has  the 
sanction  of  much  higher  authority  than  any  opinion  I  may  entertain 
upon  the  subject. 

None  of  the  five  States  sued  at  the  period  already  mentioned, 
were  suspected  either  of  a  want  of  patriotism,  or  ef  attachment  to 
the  Union ;  yet  each  of  those  States,  to  wit :  Connecticut,  New- 
York,  Virginia,  South-Carolina,  and  Georgia,  neglected  or  refused 
to  appear  and  submit  to  the  jurisdiction  of  the  court. 

The  decision  of  the  court,  entertaining  jurisdiction/produced  great 
dissatisfaction,  and  resulted  in  the  adoption,  by  at  least  three-fourths 
of  the  States,  of  the  eleventh  amendment  to  the  Constitution,  which 
put  an  end  to  all  of  the  suits  then  depending,  before  a  final  judgment 
had  been  recovered  in  either  of  them. 

This  controversy,  and  others  of  a  similar  character,  have  existed 
for  the  last  thirty  years;  and  yet  it  is  believed,  that  this  is  the  first 
instance  during  that  period,  in  which  an  attempt  has  been  made  to 
implead  a  State. 

It  is  believed,  that  the  commissioners  on  the  part  of  New-Jersey, 
amtng  whom  were  several  distinguished  lawyers,  manifested  their 
opinion,  that  the  court  could  not  exercise  compulsory  jurisdiction 
over  a  State,  by  a  proposition  for  a  voluntary  submission  of  the 
matter  in  controversy  to  the  Supreme  Court  of  the  United  States. 
See  their  letters  to  the  New-York  Commissioners  of  the  15th  and 
17th  September,  1827.    Senate  journal,  1828,  appendix  A. 

Bills  have  been  repeatedly  presented  to  Congress,  "  prescribing 
the  mode  of  commencing,  prosecuting  and  deciding  controversies 
between  States;"  but  they  have  never  met  with  the  approbation  of 
the  Legislature.  One  or  more  of  those  bills  were  brought  in  by  the 
Senators  from  New-Jersey,  who  are  reported  to  have  admitted  in 
the  discussion  of  the  bills,  as  did  other  Senators  who  were  in  favor  of 


No.  55.]  17 

bringing  this  power  into  exercise,  that  the  Supreme  Court  could  not 
exercise  this  jurisdiction  without  an  act  of  Congress  for  that  purpose, 
and  that  no  such  act  had  been  passed.  And  those  bills  are  said  to 
have  been  opposed  and  rejected,  not  on  the  ground  that  the  court 
could  act  without  further  legislation,  but  on  the  ground  that  the 
measure  was  inexpedient ;  and  that  the  harmony  of  the  Union  would 
be  best  preserved  by  leaving  dormant  in  the  Constitution  that  por- 
tion of  the  judicial  power  which  extends  to  controversies  between 
States. 

It  is  believed,  therefore,  that  it  may  be  truly  said,  that  Congress 
has  not  only  omitted,  but  that  it  has  actually  refused  to  pass  the 
necessary  laws  for  carrying  into  execution  the  judicial  power  over 
a  State. 

It  may  not  be  improper  to  add,  that  when  this  case  came  before 
the  court,  in  February,  1830,  (3  Peters  461,)  neither  the  counsel 
for  the  State  of  New-Jersey,  nor  the  court  itself,  treated  this  as  a 
question  that  had  been  already  settled,  or  as  one  free  from  difficulty. 
Mr.  Wirt,  on  behalf  of  New-Jersey,  asked  the  court  to  assign  a  day 
for  the  argument  of  the  question  of  jurisdiction,  before  another  sub- 
poena should  issue  ;  saying,  "  it  might,  if  decided  against  the  plain- 
tiffs, prevent  unnecessary  expense."  And  the  court  did  assign  a  day 
for  the  argument  of  that  question  :  and  the  Chief  Justice  added, 
that  "  if  the  argument  should  be  merely  ex  parte,  the  court  would 
not  feel  bound  by  its  decision,  if  the  State  of  New-York  afterwards 
desired  to  have  the  question  again  argued."  The  court  at  a  subse- 
quent day,  and  without  argument,  awarded  further  process  upon  the 
ground  of  previous  precedents ;  saying,  however,  "  the  State  of 
New-York  will  still  be  at  liberty  to  contest  the  proceeding  at  a 
future  time  in  the  course  of  the  cause,  if  it  shall  choose  to  insist 
upon  the  objection." 

This  question  is  distinct,  from  those  in  which  the  Supreme  Court 
exercises  an  appellate  jurisdiction,  where  a  State  may  have  been  a 
party  in  the  court  below.  In  all  such  cases,  the  State  is  plaintiff, 
and  so  a  voluntary  party  to  the  original  proceeding :  and  although 
the  parties  are  reversed  in  the  forms  of  proceeding  in  the  appellate 
court,  it  is  still  a  continuance  of  the  same  suit,  and  cannot  properly 
be  said  to  be  the  commencement  or  prosecution  of  a  suit  against  a 
State.  There  is  this  further  distinction,  that  a  writ  of  error  acts 
only  upon  the  record,  and  not  upon  the  parties  to  it.    It  is  directed 

[S.  No.  55.]  3 


18  [Senate 

not  to  the  party,  but  to  the  court  in  which  the  judgment  was  render- 
ed, and  directs  that  the  record  be  sent  into  the  appellate  court  for 
review.  A  citation  is  issued,  but  it  is  only  for  the  purpose  of  advi- 
sing the  party,  that  the  judgment  will  be  reviewed  ;  and  neither  an 
appearance  or  any  other  act  on  his  part  is  required.  This  jurisdic- 
tion does  not  depend  upon  the  character  of  the  parties,  but  upon  the 
character  of  the  cause  :  and  its  exercise  has  been  amply  provided 
for  by  the  25th  section  of  the  judiciary  act  of  1739. 

I  submit  herewith,  marked  D.  a  copy  of  one  of  the  bills  that  have 
been  before  the  Senate  of  the  United  States,  on  this  subject.  It  was 
introduced  by  Mr.  Dickerson,  one  of  the  Senators  from  New-Jersey, 
on  the  tenth  day  of  January,  1822  ;  and  is  entitled,  "  A  bill  prescri- 
bing the  mode  of  commencing,  prosecuting  and  decidingcontroversies 
between  States."  At  tho  close  of  the  paper  marked  D.  another  bill 
upon  the  same  subject,  brought  in  by  Mr.  Robbins,  one  of  the  Sena- 
tors from  Rhode-Island,  on  the  eleventh  day  of  December,  1828,  is 
mentioned,  and  the  difference  between  the  two  bills  is  pointed  out. 
From  these  bills  it  will  be  seen,  that  the  advocates  for  bringing  into 
exercise  this  portion  of  the  judicial  power  of  the  United  States, 
have  considered  it  a  matter  of  great  delicacy  and  importance,  and 
one  requiring  very  special  legislative  provisions.  Several  other 
bills  having  the  same  object  in  view,  have  at  different  periods  been 
presented  to  Congress,  but  I  have  only  seen  copies  of  the  two  al- 
ready mentioned. 

But  independent  of  the  opinion  which  I  entertained  in  relation  to 
the  power  of  the  court,  this  was  a  proceeding  against  the  State  in 
its  sovereign  capacity,  and  involving  its  territorial  jurisdiction. 
And  whether  the  State  should,  or  should  not  render  a  voluntary 
submission  to  the  proceeding  by  appearing  and  answering  the  com- 
plaint, was  a  question  belonging  either  to  the  Governor  or  the  Le- 
gislature, and  not  to  the  Attorney-General,  or  any  subordinate  agent 
of  the  government.  This  opinion  was  suggested  in  a  communication 
to  your  Excellency,  in  July  1829,  soon  after  the  suit  was  instituted, 
and  again  in  my  communication  in  December  following,  which  was 
laid  before  the  Legislature  by  your  Excellency,  on  the  opening  of 
the  session  of  1830. 

The  bills  presented  to  Congress,  for  the  purpose  of  carrying  into 
execution  that  portion  of  the  judicial  power  which  relates  to  con- 
troversies between  States,  directed  that  the  State  made  a  defendant 


No.  55.]  19 

should  be  notified  by  the  service  of  a  certified  copy  of  the  bill  of 
complaint,  and  all  documents,  upon  the  Governor  or  chief  executive 
officer  of  the  defendant  State  ;  and  that  a  notification  should  be 
served  by  the  marshall  on  the  Legislature  of  the  defendant  State,  at 
the  time  of  serving  a  copy  of  the  bill.  Those  bills  further  provided, 
that  no  person  should  be  permitted  to  act  for  the  defendant  State, 
unless  legally  authorized  by  the  Legislature  thereof:  and  that  cer- 
tain rules  should  be  granted  against  the  Legislature  of  the  State 
impleaded.  These  provisions  sufficiently  indicate,  that  the  advo- 
cates for  bringing  into  exercise  this  portion  of  the  judicial  power  of 
the  United  States,  thought  such  a  proceeding  of  sufficient  importance 
to  be  presented  to  the  State  in  its  sovereign  capacity,  and  to  be  acted 
upon  by  its  Legislature. 

The  first  process  issued  in  the  cause  was  made  returnable  on  the 
first  Monday  in  August  1829.  The  Supreme  Court  of  the  United 
States  does  not  sit  at  that  period  in  the  year ;  but  it  is  a  day  on 
which  rules  may  be  entered,  in  the  exercise  of  the  ordinary  equity 
jurisdiction  of  the  court.  It  was  thought  proper  to  advise  the  clerk 
of  the  court,  that  this  was  not  deemed  a  proper  case  for  entering  or- 
ders as  of  course  :  and  a  letter  was  addressed  to  him  on  the  27th  of 
July,  1829,  a  copy  of  which,  marked  A,  is  hereunto  annexed.  The 
clerk  was  requested  to  lay  that  letter  before  the  court,  should  the 
subject  at  any  time  be  presented  for  its  consideration. 

On  the  26th  day  of  December,  1829,  I  addressed  a  communication 
to  your  Excellency,  which  has  been  before  mentioned,  and  which 
will  be  found  in  the  legislative  documents  for  1830,  No.  4. 

While  at  the  city  of  Washington  in  the  discharge  of  other  official 
duties,  I  was,  on  the  thirteenth  day  of  January,  1830,  served  with  a 
notice  that  the  Supreme  Court  would  be  moved  on  the  thirteenth 
day  of  February  following,  to  proceed  ex  parte  in  the  cause,  and 
to  take  the  bill  filed  by  New-Jersey  as  confessed,  and  to  render  a 
decree  in  conformity  with  the  prayer  thereof.  Not  having  received 
any  instructions  to  appear  in  the  suit,  and  thinking  it  improper  to  do 
so  without  authority,  I  addressed  a  letter  to  the  Chief  Justice  and 
associate  justices  of  the  Supreme  Court,  on  the  eve  of  my<teparlure 
from  Washington,  a  copy  of  which,  marked  B,  is  hereunto  an- 
nexed. 


20  [Senate 

When  that  motion  came  on  to  be  heard,  the  Court  awarded  further 
process,  without  passing  upon  the  question  of  jurisdiction.  That 

process  was  afterwards  served,  and  was  returnable  on  the  second 
Monday  of  January  last.  In  my  communication  on  that  subject,  at 
the  commencement  of  the  present  session  of  the  Legislature,  it  was 
mentioned  that  a  decision  of  the  question  of  jurisdiction  might  be 
expected  at  the  present  term  of  the  Court. 

On  the  fifth  day  of  the  present  month,  a  motion  was  made  on  the 
part  of  New-Jersey,  in  relation  to  the  further  progress  of  the  suit: 
and  an  opinion  has  since  been  delivered,  and  an  order  or  decree  been 
made  by  the  Court,  copies  of  which,  marked  C,  are  hereunto  annex- 
ed. The  order  is,  in  substance,  that  the  complainant  be  at  liberty 
to  proceed  ex  parte,  and  that  unless  the  defendant,  being  served  with 
a  copy  of  the  decree  sixty  days  before  the  ensuing  August  term  of 
the  Court,  shall  appear  on  the  second  day  of  the  next  January  term 
thereof,  and  answers  the  bill,  the  Court  will  proceed  to  hear  the 
cause  on  the  part  of  the  complainant,  and  deeree  on  the  matter  of 
the  bill. 

Although  this  order  appears  to  be  absolute,  that  the  Court  will 
proceed  to  a  decree,  the  concluding  paragraph  of  the  opinion  will 
shew  that  it  was  not  so  intended.  The  language  of  the  opinion,  af- 
ter stating  that  the  Court  would  proceed  to  a  final  hearing  and  de- 
cision, is  as  follows — "  But,  inasmuch  as  no  final  decree  has  been 
pronounced,  or  judgment  rendered,  in  any  suit  heretofore  instituted 
in  this  Court  against  a  State,  the  question  of  proceeding  to  a  final 
decree  will  be  considered  as  not  conclusively  settled,  until  the  cause 
shall  come  on  to  be  heard  in  chief." 

Two  remarks  are  respectfully  submitted  upon  this  opinion. 

to 

The  Chief  Justice  and  those  justices  who  concurred  with  him  in 
opinion,  have  regarded  the  question  of  jurisdiction  as  one  that  had 
been  previously  adjudged ;  without  saying  what  would  be  their 
opinions  independent  of  the  former  decisions. 

The  jurisdiction  asserted  extends  only  to  the  power  of  hearing  the 
parties,  while  the  question  of  proceeding  to  a  final  decree,  (without 
which  the  litigation,  to  say  the  least,  would  be  useless,)  is  to  be 
considered  as  not  conclusively  settled. 


No.  55.]  21 

It  will  be  seen  that  nothing  has  yet  been  done  to  prejudice  the 
rights  of  the  State,  if  it  shall  be  thought  proper,  either  as  a  matter 
of  duty  or  expediency,  to  appear  and  defend  the  suit.  But  if  that 
question  is  to  be  passed  upon  by  the  Legislature,  it  ought  to  be 
done  before  the  close  of  the  present  session. 

I  am,  with  great  respect, 
Your  Excellency's 

Obedient  humble  servant, 

GREENE  C.  BRONSON, 
Attorney- General. 


i 


DOCUMENTS. 


(A.) 

Utica,  (N.  Y.)  July  27,  1829. 

Wllliam  Thomas  Carroll,  Esq. 

Clerk  of  the  Supreme  Court  of  the  United  States. 

SIR— 

The  Governor  and  Attorney-General  of  the  State  of  New- 
York,  were  recently  served  with  the  copy  of  a  bill  in  equity,  said 
to  have  been  exhibited  in  the  supreme  court  of  the  United  States, 
by  "  The  State  of  New- Jersey, vs.  The  People  of  the  State  of  New- 
York  and  with  a  subpcena  in  that  cause,  to  appear  on  the  first 
Monday  of  August  next. 

I  beg  leave  respectfully  to  say,  that  such  service  is  regarded,  on 
the  part  of  the  State  of  New-York,  as  utterly  void  ;  because  the 
mode  adopted  is  unknown  to  the  common  law,  is  not  authorised  by 
any  statute  of  the  United  States,  nor  warranted  by  any  existing  rule 
or  order  of  the  court  out  of  which  the  process  issued.  A  rule  on 
the  subject  of  the  service  of  process  upon  a  State  as  defendant,  was 
adopted  in  August  term,  1796,  (3Dail.  Rep.  320,  335)  ;  but  this  rule, 
(so  far  as  I  have  observed,)  has  been  omitted  in  every  subsequent 
publication  of  the  rules  of  the  supreme  court,  and  is  no  doubt  ob- 
solete. 

Entertaining  this  view  of  the  subject,  it  is  supposed  that  no  pro- 
ceeding will  be  had  in  the  cause,  either  in  vacation  or  at  term,  until 
the  court  shall  have  directed  the  mode  of  serving  such  process,  and 
the  prescribed  course  shall  have  been  pursued. 

Whether  the  court  has  been  clothed  wTith  power  to  compel  the 
appearance  of  a  State  as  defendant,  in  an  original  suit  or  proceeding, 
is  a  question,  (among  others,)  which  will  no  doubt  receive  from 
that  high  tribunal,  all  the  consideration  that  its  importance  demands, 
before  any  order  sh^ll  be  made  in  the  premises. 

I  will  thank  you  to  hand  this  to  the  court,  if  the  subject  shall 
ever  be  presented  to  their  consideration  ;  and  should  any  rule'or  or- 
der be  made  in,  or  affecting  this  cause,  please  send  a  certified  copy, 
addressed  to  me  at  Albany. 

I  am  sir,  wTith  great  respect, 

Your  obedient  servant, 

GREENE  C.  BRONSON, 
AWy.  Gen.  State  of  Neiv-York. 


24 


[Senate 


(B.) 

Washington  City,  Feb.  8,  1830. 

To  the  Honorable  the  Chief  Justice  and  Associate  Justices  of  the 
Supreme  Court  of  the  United  States. 

A  bill  has  been  exhibited  in  this  court  by  the  State  of  New-Jer- 
sey, against  the  People  of  the  State  of  New-York,  concerning  the 
boundary  line  between  the  two  States  ;  and  a  subpoena  to  appear 
and  answer,  with  a  copy  of  the  bill,  has  been  served  upon  the  Go- 
vernor of  the  State  of  New-York.  A  notice  has  recently  been 
served,  that  on  the  13th  instant  the  court  would  be  moved  to  take 
the  bill  pro  confesso,  and  proceed  to  a  decree  for  the  want  of  an  ap- 
pearance. 

I  beg  leave  most  respectfully  to  say,  that  the  opinion  is  entertain- 
ed, on  the  part  of  the  State  of  New-York,  that  this  court  cannot  ex- 
ercise jurisdiction  in  such  a  case,  without  the  authority  of  an  act  of 
Congress,  for  carrying  into  execution  that  portion  of  the  judicial  power 
of  the  United  States,  which  extends  to  controversies  between  two 
or  more  States. 

The  Governor  of  the  State  of  New-York  has  made  a  communica- 
tion upon  the  subject  of  this  suit  to  the  Legislature,  now  in  session, 
but  it  has  not  yet  been  acted  upon,  so  far  as  I  have  been  advised. 
Whether  the  Legislature  will  authorise  any  person  to  appear  and 
discuss  the  question  of  jurisdiction  ;  or,  whether  for  the  purpose  of 
obtaining  a  judicial  decision  upon  the  merits  of  an  unfortunate  con- 
troversy, they  will  order  an  appearance,  waiving  the  question  of  ju- 
risdiction, I  am,  at  this  time,  unable  to  determine. 

I  have  deemed  it  proper  to  make  this  communication,  to  explain 
what  might  otherwise  be  supposed  a  want  of  respect  for  this  honor- 
able court,  on  the  part  of  the  Executive  Authority  of  the  State  of 
New- York. 

GREENE  C.  BRONSON, 

Atty.  Gen.  State  of  New -York. 


No.  55.] 


25 


(C.) 

Opinion  and  Order  of  the  Supreme  Court  of  the  United  States. 

The  State  of  New  Jersey,  ]     Opinion  and  order  of  the  Supreme 
against  [  Court  of  the  United  States,  deliver- 

The  People  of  the  State  of  f  ed  by  Mr.  Chief  Justice  Marshall. — 
New- York.  J  January  term,  1831. 

This  is  a  bill  filed  by  (he  State  of  New-Jersey  against  the  State 
of  New-York,  for  the  purpose  of  ascertaining  and  settling  the  boun- 
dary between  the  two  States. 

The  constitution  of  the  United  States  declares  that  "  the  judicial 
power  shall  extend"  "to  controversies  between  two  or  more  States." 
It  also  declares  that  u  ir.  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls,  and  those  in  which  a  State  shall  be  a  par- 
ty, the  Supreme  Court  shall  have  original  jurisdiction." 

Congress  has  passed  no  act  for  the  special  purpose  of  prescribing 
the  mode  of  proceeding  in  suits  instituted  against  a  State,  or  in  any 
suit  in  which  the  Supreme  Court  is  to  exercise  the  original  jurisdic- 
tion conferred  by  the  constitution. 

The  act  "to  establish  the  judicial  courts  of  the  United  States," 
sec.  13  enacts,  "  that  the  Supreme  Court  shall  have  exclusive  juris- 
diction of  all  controversies  of  a  civil  nature,  where  a  State  is  a  par- 
ty, except  between  a  State  and  its  citizens ;  and  except  also  between 
a  State  and  citizens  of  other  States,  or  aliens  ;  in  which  latter  case, 
it  shall  have  original  but  not  exclusive  jurisdiction."  It  also  enacts, 
sec.  14,  "  that  all  the  before  mentioned  courts  of  the  United  States, 
shall  have  power  to  issue  writs  of  scire  facias,  habeas  corpus,  and 
all  other  writs  not  specially  provided  by  statute,  which  may  be  ne- 
cessary for  the  exercise  of  their  respective  jurisdictions,  and  agree- 
able to  the  principles  and  usages  of  law."  By  the  17th  section  it  is 
enacted  "  that  all  the  said  courts  of  the  United  States  shall  have 
power"  "  to  make  and  establish  all  necessary  rules  for  the  ordinary 
conducting  business  in  the  said  courts,  provided  such  rules  are  not 
repugnant  to  the  laws  of  the  United  States." 

"An  act  to  regulate  processes  in  the  courts  of  the  United  States," 
was  passed  at  the  same  session  with  the  judicial  act,  and  was  de- 
pending before  Congress  at  the  same  time.  It  enacts  "  that  all  writs 
and  processes  issuing  from  a  supreme  or  a  circuit  court,  shall  bear 
teste,"  &c.  This  act  was  rendered  perpetual  in  1792.  The  first 
section  of  the  act  of  1792,  repeats  the  provision  respecting  writs  and 
processes  issuing  from  the  supreme  or  a  circuit  court.  The  second 
continues  the  form  of  writs,  &c.  and  the  forms  and  modes  of  proceed- 
ing in  suits  at  common  law  prescribed  in  the  original  act;  "and  in 
those  of  equity,  and  in  those  of  admiralty  and  maritime  jurisdiction, 
according  to  the  principles,  rules  and  usages  which  belong  to  courts 
of  equity  and  to  courts  of  admiralty  respectively,  as  contradistin- 
guished from  courts  of  common  law  ;  except  so  far  as  may  have  been 
provided  for  by  the  act  to  establish  the  judicial  courts  of  the  United 
States  ;  subject  however  to  such  alterations  and  additions  as  the  said 


[S.  No.  55.] 


26 


[Senate 


courts  respectively  shall,  in  their  discretion,  deem  expedient,  or  to 
such  regulations  as  the  Supreme  Court  of  the  United  States  shall 
think  proper,  from  time  to  lime,  by  rule  to  prescribe  to  any  circuit 
or  district  court  concerning  the  same." 

At  a  very  early  period  in  our  judicial  history,  suits  were  institu- 
ted in  this  Court  against  States,  and  the  questions  concerning  its  ju- 
risdiction and  mode  of  proceeding,  were  necessarily  considered.  So 
early  as  August  1792,  an  injunction  was  awarded  at  the  prayer  of 
the  State  of  Georgia  to  stay  a  sum  of  money  recovered  by  Brailsford, 
a  British  subject,  which  was  claimed  by  Georgia  under  her  acts  of 
confiscation.  This  was  an  exercise  of  the  original  jurisdiction  of  the 
Court,  and  no  doubt  of  its  propriety  was  expressed. 

In  February  1793,  the  case  of  Oswald  vs.  The  State  of  New-York, 
came  on.  This  was  a  suit  at  common  law.  The  State  not  appear- 
ing on  the  return  of  the  process,  proclamation  was  made,  and  the 
following  order  entered  by  the  court — 11  Unless  the  State  appear  by 
the  first  day  of  the  next  term,  or  show  cause  to  the  contrary,  judg- 
ment will  be  entered  by  default  against  the  said  State." 

At  the  same  term,  the  case  of  Chisholm's  executors  against  the 
State  of  Georgia  came  on,  and  was  argued  for  the  plaintilTs  by  the 
then  Attorney-General,  Mr.  Randolph.  The  judges  delivered  their 
opinions  seriatim  ;  and  those  opinions  bear  ample  testimony  to  the 
profound  consideration  they  had  bestowed  on  every  question  aris- 
ing in  the.  case.  Mr.  Chief  Justice  Jay,  Mr.  Justice  Cushing,  Mr. 
Justice  Wilson  and  Mr.  Justice  Blair,  decided  in  favor  of  the  juris- 
diction of  the  Court,  and  that  the  process  served  on  the  Governor 
and  Attorney-General  of  the  State  was  sufficient.  Mr.  Justice  Ire- 
dell thought  an  act  of  Congress  necessary  to  enable  the  court  to  ex- 
ercise its  jurisdiction. 

After  directing  the  declaration  to  he  filed,  and  copies  of  it  to  Le 
served  on  the  Governor  and  Attorney-General  of  the  State  of  Geor- 
gia, the  Court  ordered,  "  that  unless  the  said  State  shall  either  in 
due  form  appear,  or  show  cause  to  the  contrary  in  this  Court  by  the 
first  day  of  the  next  term,  judgment  by  default  shall  be  entered 
against  the  said  State." 

In  February  term  1794,  judgment  was  rendered  for  the  plaintiff, 
and  a  writ  of  inquiry  was  awarded,  but  the  11th  amendment  to  the 
constitution  prevented  its  execution. 

Grayson  vs.  The  State  of  Virginia.  3  Dallas,  320,  1st  Peters  cond. 
Reports,  141,  was  a  bill  in  equity.  The  subpoena  having  been  re- 
turned executed,  the  plaintiff  moved  for  a  distringas  to  compel  the 
appearance  of  the  State.  The  Court  postponed  its  decision  on  the 
motion  in  consequence  of  a  doubt,  whether  the  remedy  to  compel 
the  appearance  of  the  State  should  be  furnished  by  the  Court  itself, 
or  by  the  Legislature.  At  a  subsequent  term,  the  Court,  "  after  a 
particular  examination  of  its  power?,"  determined  that,  though  "  the 
general  rule  prescribed  by  the  adoption  of  that  practice  which  is 
founded  on  the  custom  and  usage  of  courts  of  admiralty  and  equity," 
u  still  it  was  thought  that  we  are  also  authorised  to  make  such  de- 
viations as  are  necessary  to  adapt  the  process  and  rules  of  the  Court 


No.  55.] 


27 


to  the  peculiar  circumstances  of  this  country,  subject  to  the  interpo- 
sition, alteration  and  control  of  the  Legislature. 

We  have  therefore  agreed  to  make  the  following  general  orders. 

1.  Ordered,  that  when  process  at  common  law  or  in  equity,  shall 
issue  against  a  State,  the  same  shall  be  served  upon  the  Governor  or 
chief  executive  magistrate,  and  the  Attorney-General  of  such  State. 

2.  Ordered,  that  process  of  subpoena  issuing  out  of  this  court  in 
any  suit  in  equity,  shall  be  served  on  the  defendant  sixty  days  be- 
fore the  return  day  of  the  said  process  ;  and  further,  that  if  the  de- 
fendant on  such  service  of  the  subpoena,  shall  not  appear  at  the 
return  day  contained  therein,  the  complainant  shall  be  at  liberty  to 
proceed  ex  parte." 

In  Huger  &  a),  vs.  the  State  of  South-Carolina,  3d  Dallas,  339, 
the  service  of  the  subpoena  having  been  proved,  the  court  deter- 
mined, that  the  complainant  was  at  liberty  to  proceed  ex  parte.  He 
accordingly  moved  for  and  obtained  commissions  to  take  the  exami- 
nation of  witnesses  in  several  of  the  States. 

Fowler  &  al.  vs.  Lindsey  &  al.  and  Fowler  &  a!,  vs.  Miller,  3 
Dallas,  411,  were  ejectments  depending  in  the  circuit  court  for  the 
district  of  Connecticut,  for  lands  over  which  both  New-York  and 
Connecticut  claimed  jurisdiction.  A  rule  to  show  cause  why  these 
suits  should  not  be  removed  into  the  Supreme  Court  by  certiorari 
was  discharged  because  a  State  was  neither  nominally  nor  substan- 
tially a  party.  No  doubt  was  entertained  of  the  propriety  of  exer- 
cising original  jurisdiction,  had  a  State  been  a  party  on  the  record. 

In  consequence  of  the  rejection  of  this  motion  for  a  certiorari,  the 
State  of  New-York,  in  August  term,  1799,  filed  a  bill  against  the 
State  of  Connecticut,  4  Dallas  1,  1st  Peters  Cond.  Reports  203, 
which  contained  an  historical  account  of  the  title  of  New- York  to  the 
soil  and  jurisdiction  of  the  tract  of  land  in  dispute  ;  set  forth  an 
agreement  of  the  2Sth  of  November,  1783,  between  the  two  States 
on  the  subject;  and  prayed  a  discovery,  relief,  and  injunction  to 
stay  the  proceedings  in  the  ejectments  depending  in  the  circuit  court 
of  Connecticut. 

The  injunction  was,  on  argument,  refused,  because  the  State  of 
New-York  was  not  a  party  to  the  ejectments,  nor  interested  in  their 
decision. 

It  has  then  been  settled  by  our  predecessors,  on  great  delibera- 
tion, that  this  court  may  exercise  its  original  jurisdiction  in  suits 
against  a  State,  under  the  authority  conferred  by  the  Constitution, 
and  existing  acts  of  Congress.  The  rule  respecting  the  process,  the 
persons  on  whom  it  is  to  be  served,  and  the  time  of  service,  is  fixed. 
The  course  of  the  court  on  the  failure  of  the  State  to  appear  after 
the  due  service  of  process  has  been  also  prescribed. 

In  this  case,  the  subpoena  has  been  served  as  is  required  by  the 
rule.  The  complainant  according  to  the  practice  of  the  court,  and 
according  to  the  general  order  made  in  the  case  of  Grayson  vs.  the 
Commonwealth  of  Virginia,  has  a  right  to  proceed  ex  parte,  and  the 
court  will  make  an  order  to  that  effect,  that  the  cause  may  be  pre- 
pared for  a  final  hearing.  If  upon  being  served  with  a  copy  of  such 
order,  the  defendant  shall  still  fail  to  appear  or  to  show  cause  to  the 
contrary,  this  court  will,  so  soon  thereafter  as  the  cause  shall  be 


28 


[Senate 


prepared  by  the  complainant,  proceed  to  a  final  hearing  and  decision 
thereof.  But  inasmuch  as  no  final  decree  has  been  pronounced  or 
judgment  rendered  in  any  suit  heretofore  instituted  in  this  court 
against  a  State,  the  question  of  proceeding  to  a  final  decree  will  be 
considered  as  not  conclusively  settled  until  the  cause  shall  come  on 
to  be  heard  in  chief. 

Mr.  Justice  Baldwin  did  not  concur  in  the  opinion  of  the  court 
directing  the  order  made  in  the  cause. 

The  State  of  New-Jersey,  Complainant,  } 
against  f 
The  People  of  the  State  of  New-York,  De- 1 
fendant.  j 

The  subpoena  in  this  cause  having  been  returned  executed,  sixty 
days  before  the  return  day  thereof,  and  the  defendant  having  failed 
to  appear,  it  is,  on  the  motion  of  the  complainant,  decreed  and  or- 
dered, that  the  complainant  be  at  liberty  to  proceed  ex  parte;  and 
it  is  further  decreed  and  ordered,  that  unless  the  defendant  being 
served  with  a  copy  of  this  decree,  sixty  days  before  the  ensuing 
August  term  of  this  court,  shall  appear  on  the  second  day  of  the  next 
January  term  thereof,  and  answer  the  bill  of  the  complainant;  this 
court  will  proced  to  hear  the  cause  on  the  part  of  the  complainant, 
and  to  decree  on  the  matter  of  the  said  bill. 

Washington,  Feb.  12,  1831. 
I,  Richard  Peters,  reporter  of  the  decisions  of  the  Supreme  Court 
of  the  United  States,  do  hereby  certify,  that  the  foregoing  is  a  true 
copy  of  the  order  and  opinion  of  said  Supreme  Court,  delivered  in 
the  above  cause  by  Mr.  Chief  Justice  Marshall,  at  January  term 
eighteen  hundred  and  thirty-one. 

RICH'D  PETERS. 

(D.) 

Bill  introduced  by  Mr.  Dickerson  of  New- Jersey,  Jan.  10th  1822. 

A  BILL  prescr  ibing  the  mode  of  commencing,  prosecuting  and  de- 
ciding  controversies  between  states. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assembled,  That  in  all  cases 
where  any  matter  of  controversy  now  exists,  or  hereafter  may  exist, 
between  states  in  relation  to  jurisdiction,  territory  or  boundaries, 
or  any  other  matter  which  may  be  the  proper  subject  of  judicial  de- 
cision, it  shall  be  lawful  for  the  state  deeming  itself  aggrieved,  to 
institute  against  the  state  of  which  it  complains  a  suit,  or  suits,  in 
the  supreme  court  of  the  United  States,  by  bill,  in  the  nature  of  a 
bill  in  equity,  stating  all  the  facts,  and  exhibiting  and  referring  to  all 
papers  and  documents  deemed  necessary  to  substantiate  the  com- 
plaint. 

§  2.  And  be  it  further  enacted,  That  all  suits  by  one  state  against 
another  state,  shall  be  brought,  prosecuted  and  defended,  in  the  le- 


No.  55.] 


B9 


gal  and  proper  names  of  such  states  respectively  ;  and  all  process 
and  proceedings  shall  be  sued  out  and  entered  accordingly. 

§  3.  And  be  it  further  enacted.  That  no  suit  shall  be  commenced 
or  prosecuted  in  the  name  of  any  state,  as  complainant,  under  the 
authority  of  this  act,  without  the  order  or  direction  of  the  legisla- 
ture of  the  state  suing;  a  copy  of  which,  legally  certified,  shall  be 
filed  with  the  bill  in  the  clerk's  office  of  the  supreme  court  of  the 
United  States,  at  the  time  of  the  commencement  of  the  suit ;  and  it 
shall,  moreover,  be  the  duty  of  the  legislature  of  every  complaining 
state  to  provide  for,  and  cause  to  be  appointed,  some  fit  person  or 
persons  to  manage  the  prosecution  of  such  suit,  and  the  document 
or  documents  by  which  such  appointment  is  made,  or  a  copy  or  co- 
pies thereof,  legally  certified,  shall  accompany  the  bill  of  com- 
plaint. 

§  4.  And  be  it  further  enacted,  That  the  state  made  defendant 
by  any  suit  under  the  provisions  of  this  act,  shall  be  notified  thereof 
by  the  delivery  of  a  copy  of  the  bill  of  complaint,  and  all  documents 
therein  referred  to,  legally  certified  by  the  clerk  of  the  supreme 
court,  to  the  governor,  or  chief  executive  officer  uf  the  defendant 
state,  by  the  marshal  thereof ;  and  there  shall,  moreover,  be  issued 
by  the  said  clerk,  a  written  notification,  stating  when  and  where  the 
said  defendant  state  shall  enter,  in  legal  manner,  appearance  to  the 
suit,  and  answer  the  bill  of  complaint ;  a  copy  of  which,  in  like  man- 
ner, shall  be  served  on  the  legislature  of  any  defendant  state,  by 
the  marshal,  at  the  time  of  serving  the  copy  of  the  bill  and  docu- 
ments above  mentioned.  And  it  shall  be  the  duty  of  the  marshal 
to  make  due  return  of  the  service  of  such  bill,  documents  and  notifi- 
cation, to  the  clerk  of  the  supreme  court,  before  the  day  specified 
for  appearance,  stating  when  and  wThere  such  service  was  per- 
formed. 

§  5.  And  be  it  further  enacted,  That  no  act  or  proceeding  on  the 
part  of  any  defending  state  shall  be  permitted,  but  by  some  per- 
son or  persons  legally  authorised  by  the  legislature  thereof,  as 
manager  or  managers  ;  and  not  by  such  person  or  persons,  until  the 
instrument  or  document,  or  instruments  or  documents,  vesting  such 
power,  legally  certified,  is  or  are  filed  in  the  clerk's  office  of  the 
supreme  court. 

§  6.  And  be  it  further  enacted,  That  the  state  made  defendant  in 
any  suit,  under  the  provisions  of  this  act,  may,  by  any  answer  or 
answers,  as  the  case  may  be,  state  such  matters  of  fact  and  law,  and 
exhibit  such  documents  as  may  be  deemed  necessary  in  defence ; 
which  said  answer  or  answers  shall  be  filed  with  the  clerk  of  the  su- 
preme court,  within  one  year  after  notification  of  suit,  in  the  man- 
ner hereinafter  directed  :  Provided,  however,  That  the  court  may, 
for  substantial  cause  shown,  reasonably  enlarge  the  time  for  filing 
such  answer  or  answers. 

§  7.  And  be  it  further  enacted,  That  the  persons  appointed  to 
prosecute  and  defend  any  suit  brought  under  the  provisions  of  this 
act,  shall  be  considered,  to  all  intents  and  purposes,  as  representing 
the  states  respectively  ;  and  all  and  every  of  their  acts  of  record,  in 
relation  to  the  prosecution  or  defence  of  such  suit,  shall  be  deemed 
and  held  as  valid  and  effectual  as  similar  acts  between  individual 


30 


[Senate 


and  individual ;  and  all  notices  of  the  time  and  place  of  taking  de- 
positions, and  of  any  act  or  thing  necessary  to  be  done  or  executed 
in  the  country,  shall  be  considered  and  taken  to  be  well  served  or 
executed  on  either  side,  by  delivering  to  the  adverse  agent  or  ma- 
nager a  written  notification,  as  in  the  case  of  suits  between  individu- 
al and  individual. 

§  8.  And  be  it  further  enacted,  That  for  the  purposes  of  ascer- 
taining boundary  lines,  objects  referred  to,  and  for  any  other  pur- 
pose necessary  to  be  done  and  executed  in  the  country,  in  relation 
to  any  suit  brought  under  the  provisions  of  this  act,  it  shall  be  law- 
ful for  the  couit  to  appoint  one  or  more  fit  persons  as  commission- 
ers, by  order  of  record,  whose  duty  it  shall  be,  under  the  pains  and 
penalties  consequent  upon  contempts,  to  do  and  perform  such  act 
or  acts,  in  the  time  and  manner  prescribed  in  the  court's  said  order, 
first  making  oath,  before  some  officer  legally  authorised  to  adminis- 
ter oaths,  that  such  commissioners,  respectively,  will  faithfully  and 
impartially  execute  the  duties  specified  in  such  order. 

§  9.  And  be  it  further  enacted,  That  the  same  rules  and  princi- 
ples, which  are  established  by  law,  equity  and  practice,  in  the  su- 
preme and  circuit  courts,  in  relation  to  suits  by  individuals  against 
individuals,  shall  govern  the  said  court  and  the  parties  to  any  suit 
or  suits,  commenced  under  this  act,  as  to  amendments  and  proceed- 
ings, not  herein  mentioned,  and  as  to  the  manner  of  taking  deposi- 
tions, the  competency,  admissibility,  and  relevancy,  or  right  of  tes- 
timony. 

§  10.  And  be  it  further  enacted,  That  one  year  after  the  defend- 
ant state  shall  have  filed  the  answer  or  answers  herein  directed,  the 
court  may  proceed  to  hear  and  determine  the  matter  in  controversy 
between  such  states  :  Provided,  Notice  of  record  of  such  hearing 
has  been  previously  entered  by  one  of  the  parties  ;  and  no  hearing 
shall  be  had  after  answer  or  answers  filed,  without  such  notice  :  And 
provided  also,  That  the  court,  for  good  cause  shown,  may  enlarge 
the  time  for  such  hearing. 

§11.  And  be  it  further  enacted,  That  in  case  the  answer  of  any 
defendant  state  shall  not  be  filed  within  the  time  limited  by  this 
act,  and  no  cause  is  shewn  to  the  court  why  such  failure  has  happen- 
ed, the  court,  on  motion,  shall  award  against  the  manager  or  mana- 
gers of  the  defence,  if  any  there  be,  and  in  case  there  is  none, 
against  the  legislature  of  such  state,  a  rule  to  shew  cause  why  the 
court  should  not  proceed  to  take  and  consider  the  bill  as  true,  and 
decree  accordingly  ;  which  said  rule  shall  be  served  on  the  mana- 
ger or  managers,  or  the  legislature,  as  the  nature  of  the  case  may 
require,  by  the  marshal's  delivering  a  sworn,  or  legally  certified  co- 
py thereof;  and  it  shall  be  the  duty  of  the  marshal  to  make  delivery 
thereof,  and  certify  forthwith  to  the  court,  specially,  the  time  and 
manner  of  such  delivery. 

§  12.  And  be  it  further  enacted,  That  at  the  term  of  the  supreme 
court  next  after  the  return  of  the  rule  served,  as  herein  before  di- 
rected, the  court  may,  unless  good  cause  is  shewn  against  such  pro- 
cedure, hear  the  bill  of  complaint,  consider  it  as  true,  and  pronounce 
such  decree  as  may  be  consistent  with  the  principles  of  law  and 
equity. 


No.  55.] 


$1 


§  13.  And  be  it  further  enacted.  That  upon  hearing  any  matter  of 
controversy  between  states,  pursuant  to  the  provisions  of  this  act, 
the  court  shall  decree  to  the  party  succeeding,  all  legal  and  reason- 
able costs  of  suit,  to  be  ascertained  in  the  manner  hereinafter  di- 
rected. 

§  14.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the 
supreme  court  to  appoint  one  or  more  fit  persons  as  commissioners 
to  ascertain  upon  oath,  and  report  specially  to  the  court,  the  amount 
of  all  reasonable  costs  expended  in  the  prosecution  of  any  suit,  un- 
der the  provisions  of  this  act,  including  as  well  pecuniary  disburse- 
ments, as  the  service  of  officers  ;  which  said  sums  the  court  may 
adjudge  to  be  paid  to  the  several  parties  or  persons  entitled,  ac- 
cording to  the  nature  of  said  report. 

§  15.  And  be  it  further  enacted,  That  whenever  any  decree  shall 
be  pronounced  in  pursuance  of  the  provisions  of  this  act,  it  shall  be 
the  duty  of  the  court  to  cause  to  be  delivered  to  the  governor,  or 
chief  executive  officer  of  the  state  against  which  such  decree  is  pro- 
nounced, a  legally  certified  copy  of  the  decree,  with  a  request  from 
the  court,  that  the  same  may,  in  a  reasonable  time,  be  executed  :  to 
cause  the  same  to  be  carried  into  complete  effect,  to  make  anjr  or- 
der necessary  and  proper  for  that  purpose,  and  to  issue  a  mandate 
or  warrant  to  any  marshal  or  marshals  of  the  United  States,  requir- 
ing him  or  them  to  execute  such  decree  in  the  manner  to  be  pre- 
scribed in  said  warrant  or  mandate,  and  to  make  return  thereof  as 
in  other  cases.  And  it  shall  be  the  duty  of  any  such  marshal  or 
marshals,  and  he  or  they  shall  be,  and  they  are  hereby  authorised, 
to  carry  said  decree  into  execution  accordingly,  and  to  command  and 
receive  assistance,  and  use  force  if  necessary.  And  for  any  servi- 
ces rendered  by  any  such  marshal  or  marshals,  in  the  execution  of 
any  such  decree,  as  well  as  for  any  other  services  that  shall  be  by 
the  court  required  of  him  or  them,  the  said  marshal  or  marshals  shall 
receive  a  reasonable  compensation,  to  be  adjudged  of  and  allowed 
by  the  court. 

Bill  introduced  by  Mr.  Robbins,  of  Rhode-Island,  Dec.  11,  1828. 

The  title,  and  the  first  fourteen  sections  of  this  bill,  corresponded 
with  the  title  and  first  fourteen  sections  of  the  bill  introduced  by  Mr. 
Dickerson. 

The  15th  section  was  in  the  following  words  : 

"  §  15.  And  be  it  further  enacted,  That  whenever  any  decree  shall 
be  pronounced,  in  pursuance  of  the  provisions  of  this  act,  it  shall 
be  the  duty  of  the  court  to  cause  to  be  delivered  to  the  governor, 
or  chief  executive  officer  of  the  state  against  which  such  decree  is 
pronounced,  a  legally  certified  copy  of  the  decree,  w7ith  a  request 
from  the  court,  that  the  same  may,  in  a  reasonable  time,  be  exe- 
cuted." 

A  section  was  added  in  the  following  words  : 

"  §  16.  And  be  it  further  enacted,  That  this  act  shall  be  in  force 
from  and  after  the  passing  thereof,  for  five  years  then  next  ensuing, 
and  to  the  end  of  the  current  session  of  congress  in  which  the  said 
five  years  shall  expire,  and  no  longer." 


• 


izx  IGtbrtB 


SEYMOUR  DURST 


IVhen  you  leave,  please  leave  this  book 

Because  it  has  been  said 
" Ever' thing  comes  t'  him  who  waits 

Except  a  loaned  book." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


